FEDERAL COURT OF AUSTRALIA Munish v Minister for Immigration and Border Protection [2015] FCA 459 Citation: Munish v Minister for Immigration and Border Protection [2015] FCA 459 Appeal from: Application for leave to appeal: Munish v Minister for Immigration [2015] FCCA 410 Parties: MUNISH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: SAD 28 of 2015 Judge: MANSFIELD J Date of judgment: 13 May 2015 Date of hearing: 12 May 2015 Place: Adelaide Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 24 Counsel for the Applicant: The applicant did not appear Counsel for the Respondents: S McDonald Solicitor for the Respondents: Sparke Helmore Lawyers IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 28 of 2015 BETWEEN: MUNISH Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: MANSFIELD J DATE OF ORDER: 12 MAY 2015 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay to the first respondent the costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 28 of 2015 BETWEEN: MUNISH Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: MANSFIELD J DATE: 13 MAY 2015 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application for leave to appeal from a decision of the Federal Circuit Court (FCC) given on 10 February 2015: Munish v Minister for Immigration & Anor [2015] FCCA 410. 2 The applicant described himself in his application to this Court as an appellant, and his application as a Notice of Appeal, but because the FCC dismissed his application to that Court because of his non-attendance, pursuant to r 13.03C of the Federal Circuit Court Rules 2001 (Cth), that decision is an interlocutory judgment from which leave to appeal to this Court is necessary: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 3 When the matter came on for hearing, the applicant did not appear. The afternoon before the hearing, he sent by facsimile to the Registry a notice that he would not be appearing at the hearing because of sickness, supported by a medical certificate which was in the following terms: Dr Tauhid Khan MBBS 65 Thurk Street RENMARK 5341 Medical Certiificate THIS IS TO CERTIFY THAT Mr Munish Munish IS RECEIVING MEDICAL TREATMENT FOR THE PERIOD Monday, 11 May 2015 TO Wednesday, 13 May 2015 INCLUSIVE He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION This Certificate was completed on 11/5/2015 [signed] Dr Tauhid Khan 4 The medical certificate did not say that he would be unable to attend the Court for the purposes of this hearing. It said that he was unfit to conduct his usual occupation because of a medical condition. The medical condition was not identified. 5 Obviously, that material was intended to constitute an application for an adjournment of the hearing. Counsel for the Minister opposed the application on the grounds that it was not properly supported by medical evidence. For reasons which are apparent, I accepted that submission. Indeed, as the FCC reasons indicate at [2]-[4], the applicant adopted the same procedure in that Court. His implicit application for an adjournment of that hearing was also refused. He would, because of the FCC reasons, have been well aware that a medical certificate in the form in which he presented it on this occasion would be inadequate to support an application for an adjournment, and that any medical information in support of an application for adjournment should be more fulsome. 6 As I indicated, I would refuse the application for leave to appeal not simply by reason of the applicant's non-attendance, but because in any event neither the decision of the Migration Review Tribunal which was challenged before the FCC nor the decision of the FCC is attended by sufficient doubt to warrant its reconsideration, and consequently no substantial injustice would result to him by the refusal of leave: cf Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. I also indicated that the applicant should pay the costs of the first respondent. 7 I indicated that I would subsequently publish reasons for the decision refusing the application for leave to appeal. 8 These are my reasons for that decision. 9 The applicant is a citizen of India who applied for a Skilled (Provisional) Class VC (subclass 485) Skilled Graduate visa (a Skilled Visa) on 22 December 2012. 10 The primary relevant criterion to be satisfied at the time of his application for the grant of the Skilled Visa was that he met the requirements of cl 485.213 of Sch 2 of the Migration Regulations 1994 (the Regulations) which provided as follows: (a) the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made. 11 Regulation 1.15F prescribes the requirements of the Australian study requirement" as follows (insofar as is relevant): (1) A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses: ... (e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study. 12 On 24 April 2013, a delegate of the Minister refused to grant the applicant a Skilled Visa, as the applicant was not able to satisfy the Australian study requirement, as prescribed in Regulation 1.15F(1)(e) of the Regulations. On 9 May 2013, the applicant applied to the Tribunal for a review of the delegate's decision. 13 On 20 May 2014, the Tribunal affirmed the delegate's decision not to grant the applicant a Skilled Visa. The Tribunal's decision was made upon the same basis as the delegate's decision. The Tribunal found (at [16]-[19] of the Tribunal's decision) that: (a) the applicant held a student visa subject to Condition 8201, with a 3 month study limit; (b) the applicant had studied for approximately 8 months whilst holding this visa, in contravention of Condition 8201; (c) consequently, the applicant did not satisfy the Australian study requirement – in Reg 1.15F(e) – because he had not held a visa entitling him to study for the period of time in which he had studied, in the 6 months immediately prior to his visa application; and (d) the applicant therefore had not, and could not, satisfy cl 485.213. 14 The applicant then applied to the FCC for judicial review of the Tribunal's decision. As noted, he did not attend at that hearing, and consequently his application was dismissed. 15 The ground of appeal to this Court was in essence the same as the ground of appeal to the FCC (obviously apart from the first few lines) was as follows: Federal Circuit court listed my case but the Respected judge failed to see error in the decision of the Tribunal. Respected Member of Migration review Tribunal made error in the decision. As per member I failed to satisfy cl.485.213(a) which means that I did not satisfy the Australian Study requirement in the 6 months immediately before the visa application date. According to tribunal I finished diploma of community welfare work but as it was studied on a student dependent visa so I was subject to condition 8201 which states that holder cannot study more than 3 months. Now I was on student dependent visa so I should have study rights as well. I have same work rights as primary applicant then why are my study rights different. There is error in law and a student dependent who is given same work rights should also be given same study rights. As MRT failed to detect this error its decision is wrong. (sic) 16 In my view, the appellant has not identified any error on the part of the FCC in proceeding to hear and determine the matter in his absence, and indeed he has not asserted any error in that regard. It was clearly a decision reasonably open to the FCC to refuse the adjournment, and having regard to the material that was then before the FCC to exercise the discretion which it exercised to dismiss his application. There does not appear to be any appealable error in relation to that process: cf House v The King (1936) 55 CLR 499 at 504-505. 17 That would be sufficient to dispose of the appeal, but as I indicated in the course of submissions, I propose further to address the question of whether the applicant might otherwise be exposed to substantial injustice if he were now unable to support his initial assertions of error on the part of the Tribunal. 18 The material referred to above indicates why it was found that the applicant did not satisfy the Australian study requirement imposed by Reg 1.15F of the Regulations, as required by cl 485.213(a) of Sch 2 of the Regulations. 19 The reason for that conclusion is based upon the data available to the Tribunal relating to the applicant's visa and study history. 20 In support of his application for the skilled visa, he said that he had completed a Diploma of Community Welfare Work by a course of study between 20 August 2009 and 15 July 2012. The last eight months of that study period covered the period when the applicant was in Australia pursuant to a student visa covering the period 4 November 2011 to 15 March 2013. The student visa was subject to condition 8201, which permitted him to study for three months only during the period of the visa. So, for the period from 4 November 2011 to 25 July 2012, whilst he was completing his Diploma of Community Welfare Work, he spent eight months studying during a period when his student visa permitted him to study for no more than three months by reason of condition 8201. 21 Consequently, the Tribunal took the view that he could not satisfy the condition imposed by Reg 1.15F(e) because, at the time of his application, he had undertaken whilst in Australia as the holder of a student visa authorising him to study for three months the course of study which he had undertaken. That is simply a matter of applying the words of the Reg 1.15F(1)(e) to the facts which the applicant put forward in support of his claim. 22 It is not the function of the Court to comment upon why condition 8201 was imposed on his student visa, or its rationale in the particular circumstances of the applicant. However, it is clear that the applicant did not meet the condition imposed by Reg 1.15F(1)(e) because part of his course of study, indeed some eight months of it, was undertaken during the period when he was the holder of a student visa authorising him to study pursuant to condition 8201 only for a period of three months. He was not therefore eligible for the Skilled Visa for which he applied. His application was refused by the Tribunal without error. 23 Accordingly, I do not see, in the circumstances, that there would be any injustice to the applicant by dismissing his application, even if the exercise of the discretion by the FCC were wrong in a reviewable way, because in any event he could not make out an entitlement to the Skilled Visa on the basis of the facts which he asserts in his grounds of review, having regard to the apparently clear and unequivocal terms of Reg 1.15F(1)(e). 24 For those reasons, I dismissed the application for leave to appeal with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 13 May 2015